Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law.

• Author: Ben-Shahar, Omri
• Position: Book review

BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS, AND THE RULE OF LAW. By Margaret Jane Radin. Princeton and Oxford: Princeton University Press. 2013. Pp. xvii, 248. $35.

INTRODUCTION

You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract. (1) There is no agreement to it, no real consent, not even "blanket assent." It is nothing but paperwork and should have the legal fortune of junk mail.

Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked ("We Accept") on computer screens--does anyone really think that they contain arrangements that people knowingly agreed to? How is it, then, that such unreadable and unread documents have become so powerful and effective in regulating the rights and obligations of contracting parties? Entire areas of law--contract default rules, sales law, privacy law, and copyright fair use (to name a few)--have been "deleted" by meticulously drafted documents that replace the pro-consumer provisions of these laws with pro-business arrangements. And if the fine print is so offensive to our legal universe of fair and balanced default rules, why is it so radical to propose that it should be invalid? Is the practice of fine print so deeply rooted in our commerce--so much of our economy relies on the fine print as the ultimate regulation of trade--that it is too big to curtail?

Let's end the pretense, says Radin, and restore a sensible conception of "agreement" to our commercial life. Because boilerplates do not represent informed consent, because they are divorced from our intuitive understanding of agreement, and because they divest people of their democratically enacted entitlements, they degrade the institution of contract that is justified by its respect for individual autonomy and private control. Therefore, boilerplates should be powerless to govern people's rights. They "should be declared invalid in toto, and recipients should instead be governed by the background legal default rules" (p. 213). And to make sure that firms stop shoving such offensive paperwork in front of people, a new tort of "intentional deprivation of basic legal rights" should operate as a deterrent (p. 211).

There are two ways to assess the phenomenon of regulation through boilerplate. The first approach is to ask how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy. Many of those adopting this perspective, and Radin prominently among them, are critical of boilerplate and find the process, as well as its consequences, intolerable. I need a term for those favoring this approach, and I will borrow the term "autonomists." (2) Autonomism necessarily includes a variety of views about the role of regulation in safeguarding the autonomy of individuals, but it is a useful generalization because so many commentators share a basic commitment to it as a foundation for normative claims.

Radin's book is an autonomist manifesto, in that it identifies the normative and democratic degradation" that boilerplates impose. It views the exercise of boilerplate contracting as anything but a dignified, autonomous agreement. Boilerplates destroy both the public aspects of private law-namely, those "placed in the care of the polity, for the benefit of the polity as a whole" (p. 212)--as well as the possibility of meaningful private ordering. Bilaterally negotiated agreements are replaced by unilaterally dictated take it-or-leave-it corpora of legal terms.

Radin's account projects the familiar complaint against "contracts of adhesion" and "unequal bargaining power" onto a foundational, liberal political mapping. Even within the dense autonomist literature bemoaning the evils of boilerplate, which now embraces vast legal commentary and court decisions, Radin's account is a milestone because it does not shy away from raising the stakes. Because boilerplate allegedly destroys the very justification for enforcing private contracts, two implications for the appropriate legal response emerge: First, boilerplate contracts should not be enforced, period (p. 213). Gone is the hesitant voice of other autonomists who propose tentative tweaks and invoke subtle distinctions between garden-variety and truly harsh boilerplate. The scheme itself violates good social order and has to be outlawed. Second, in a bold and surprising move, Radin goes a step further. The practice of boilerplate deletion of rights, she argues, should be regarded as an intentional tort! (p. 211). Boilerplate renders the product to which it is attached defective because it makes the legal features nonfunctional, it makes the firm immune from liability and thus numb to its clients' interests, and it makes the overall purchase less safe for consumers. "Being a recipient of boilerplate ... is often more like being hit by a one of thousands of dumped projectiles than it is like entering into a relationship with the entity that dumped them" (p. 210). In the same way that the torts of defamation or deprivation of privacy protect people from nonphysical injuries, here, too, the harm inflicted by boilerplate is the degradation of basic rights secured by the polity. A commission of this tort of "intentional deprivation of basic legal rights" should lead to remedies like statutory damages and attorneys' fees (pp. 212-13).

In contrast to autonomism and its focus on the ills of boilerplate as a process for contracting, a second approach to regulation-by-boilerplate asks how it affects the outcome of contracting. This is an approach largely numb to the inherent political value of private order, control, or "voice." There is also no per se value in having some terms enacted by the polity rather than by the parties. Consumers don't care who writes the terms; they only care how the terms influence their well-being or satisfaction from the product to which the terms are attached. This approach measures the boilerplate phenomenon merely by its effect on consumers' "payoffs." What matters is the substance of the deal, its cost to consumers, the ease by which profitable deals are formed, and the opportunities to realize benefits from trade. I also need a term for those who favor this perspective (myself--I'll reveal now--among them), and I'll borrow Radin's somewhat derogatory term--"boiler plate apologists" (p. 198). Boilerplate apologists regard the fine print as merely a feature of mass-produced products, and a welfare-increasing feature at that--reducing transactions costs and prices and allowing firms to focus on improving product features that people actually care about.

Radin's argument poses two challenges for the boilerplate apologist. The first challenge is the problem of ignorance--how can people be obligated to abide by terms that are impossible to know and appreciate in advance? How could such terms match their preferences? The second challenge is the problem of intolerable terms--why should baseline legal entitlements be replaced with harsh, one-sided arrangements? In the course of addressing these is sues, I will evaluate the wisdom of Radin's proposed remedies--the nonenforceability of boilerplate and the tort remedy.

In the hope that this Review will not merely reproduce the autonomist versus-apologist shouting match, my plan is to accept the autonomists' premise. That is, I will assume that there is something offensive about binding people to terms that they did not know about. The social experience of receiving fine print is annoying, alienating, and even degrading. But what can be done about it? Do the reforms and remedies proposed by autonomists improve people's well-being? Their sense of dignity and control? Or, in an unintended fashion, might they make things worse? I will offer words of caution, urging autonomists to consider some of the less desirable but inevitable consequences of a boilerplate-free universe.

1. BOILERPLATE AND THE PROBLEM OF IGNORANCE

   The problem with boilerplate begins with the assertion that there is no consent to it. The basic problem is what Radin calls "sheer ignorance" (p. 21). Because consumers may complete transactions without even seeing or signing the fine print, and surely without reading it, people don't know that it exists, what it says, or that "they are being divested of important legal rights" (p. 22). This ignorance is compounded by asymmetric sophistication, by the limited rationality of consumers, and by the striking absence of non-boilerplate alternatives. In all, self-serving drafters sit at their corporate headquarters and disseminate documents that override the democratically enacted law--the set of background rights that are granted to their customers.

   Boilerplate is not an agreement but rather a "devolution or decay of the concept of voluntariness" (p. 30). Destroyed in the course of boilerplate contracting, Radin argues, are not only the arrangements that background legal rules (like implied warranties and make-whole damages) offer. Rather, the process of deleting rights without informed consent also undermines "private ordering" (p. 33)--the regime empowering private parties to "legislate" their own affairs. If consumers don't negotiate, don't participate, and don't even know the terms of a transaction--if these sacraments of contracting are replaced by post hoc paperwork--there is no meaningful private ordering. Without informed consent, freedom of contract is meaningless, and the ideal of individual autonomy that justifies the contractual framework is crippled.

   There is a subtle notion of the "public" sphere that underlies Radin's complaint against boilerplate. The terms that appear in boilerplates substitute an entire fabric of legal rules that would otherwise govern. While private parties are permitted to modify these...